Legal Issues: E-Mail Legislation

Topic: Commercial E-mail

Answers Your Legal Questions

Compliance with Federal and State Commercial E-Mail Legislation

The federal CAN-SPAM Act largely preempts Illinois e-mail legislation and identifies specific guidelines for commercial e-mails. The law is designed to keep spammers from using deceptive subject lines and nonexistent return addresses in their messages and forbid them from harvesting e-mails from Web sites.

IAR FAQs on Commercial E-Mail Messages

Q: If I am an Illinois real estate licensee who sends commercial e-mail messages, or those messages where the primary purpose is to promote a commercial product or service, how can I comply with both federal and state e-mail statutes?

The federal CAN-SPAM Act of 2003 preempts most provisions of the Illinois Electronic Mail Act of 2000 (Illinois Act of 2000). In other words, if you send commercial e-mail messages, you will need to comply with the federal provisions. Under the Illinois statute, you would not need to be concerned if you had an existing business relationship with or prior consent from the recipient to send commercial messages. However, under the federal law that became effective January 1, 2004, you must include certain items in your e-mail message if it is commercial in nature and does not constitute a "transactional or relationship message." (See the NAR site[1] for a definition of transactional and relationship messages as well as other Q&As on the subject.)

In short, commercial e-mails, whether they are unsolicited or not, must contain the following:

a legitimate return e-mail and physical postal address;

a clear opportunity to opt-out of any further messages;

a way for the recipient to e-mail the sender for at least 30 days his desire not to receive any further messages;

a clear and conspicuous notice that the content is an advertisement; and

if the content is pornographic or sexual in nature, a clear notice to that effect should be put in the subject line.

The portion of the Illinois Act of 2000 that prohibits hiding the identity of the sender or falsifying the subject matter of the message seems to remain in effect. In other words, the federal law preempts all state laws regarding commercial e-mail except for those laws or portions of those laws that prohibit falsification of the source or content of the e-mail transmission.

One positive development for the real estate practitioner may be that under the Illinois Act a real estate broker would have had to identify an unsolicited e-mail message with the mark "ADV:ADLT" given that a minor cannot enter contracts in Illinois. Under the federal statute, which purportedly now controls, the identifier "ADLT" or some similar identifier is only required in the case of pornography or other messages with sexual content.

Q: If I am a REALTOR® association executive, how does the enactment of the federal law affect my association?

Under the Illinois Act, you would be safe to send electronic messages to members of the association under the existing business relationship exception. Unfortunately now, under the federal statute, there is no such exception. The only e-mail messages that would not be regulated by this law would be those that are transactional or relationship messages. This would presumably cover those messages where the primary purpose concerns those member benefits included by payment of member dues. If the message is to promote or solicit some good or service that will cost something over and above the dues amount, the association will have to meet the requirements for commercial e-mail messages. Those requirements are outlined above in the bulleted list and in the NAR document.

Other items of interest regarding CAN-SPAM and the Illinois Electronic Mail Act

You may wish to review the provisions of the federal law that deal only with "spam" or unsolicited e-mail messages to be sure you comply in these situations.

Under CAN-SPAM, the Federal Trade Commission (FTC) drafted regulations to clarify the statute. One clarification that might be helpful to associations sets forth criteria for determining the "primary purpose" of an electronic message. This might help in the case of an association electronic newsletter, which also contains information about upcoming events that would have an additional cost. You need to review the content of your e-newsletter and determine whether the primary purpose of the newsletter is a member benefit or a commercial e-mail transmission.

NAR CAN-SPAM FAQs

FCC Rules on Commercial E-Mail to Wireless Devices

The National Association of REALTORS®[4] offers an update on FCC rules for sending commercial electronic messages to wireless devices (such as cell phones, PDAs, handheld devices), effective October 18, 2004. Based on the rules, any business seeking to send a commercial electronic mail message will need to first check the FCC's wireless domain name list to assure that the commercial electronic mail message is not being sent to any of the listed domains, as the sender needs "express prior authorization" from the recipient in order to send commercial messages to those individuals.

FTC Issues "Primary Purpose" Criteria

The Federal Trade Commission ("FTC") issued its final rules defining the criteria for determining the "primary purpose" of an electronic mail message under the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("Act"). The rules help guide senders on which electronic mail messages are commercial and therefore subject to the Act's requirements. The rules are very similar to those originally issued by the FTC in 2004, with only some minor changes made in the final version. The rules were effective March 28, 2005. Read NAR analysis of the rules[1] and view the full rules[2].